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Antonin Scalia, Legislative History, and Tiger Cubs

Justice Scalia has been voicing his disdain for legislative history for a quarter century now. Today we celebrate the latest case in point — and his birthday.

Scalia does not believe federal judges trying to interpret a statute should look to congressional committee reports, floor speeches and other artifacts of the legislative process. He says judges should look solely at the text of the law and related statutes to determine Congress’s intention.

With his usual punch, he reminded his colleagues this week of that view, in the case of Milavetz, Gallop & Milavetz v. United States, regarding a 2005 bankruptcy law. Scalia joined the majority in a two-part decision that said the law barring certain professionals from advising clients “to incur more debt in contemplation of” filing for bankruptcy applies to attorneys, and that the law can be narrowly construed to avoid a First Amendment violation. But Scalia took exception to footnote 3 of the decision Justice Sonia Sotomayor wrote for the Court.

Sotomayor opened footnote 3 by declaring that, “Although reliance on legislative history is unnecessary in light of the statute’s unambiguous language, we note the support that record provides for the government’s reading.”

In his concurring opinion, Scalia countered, “The Court acknowledges that nothing can be gained by this superfluous citation … But much can be lost. Our cases have said that legislative history is irrelevant when the statutory text is clear. The footnote advises conscientious attorneys that this is not true, and that they must spend time and their clients’ treasure combing the annals of legislative history in all cases: To buttress their case where the statutory text is unambiguously in their favor; and to attack an unambiguous text that is against them. If legislative history is relevant to confirm that a clear text means what it says, it is presumably relevant to show that an apparently clear text does not mean what it seems to say. Even for those who believe in the legal fiction that committee reports reflect congressional intent, footnote 3 is a bridge too far.”

Beginning in the mid-1980s, after he became an appeals court judge yet remained on the academic lecture circuit, Scalia regularly spoke out against legislative history. In one stock speech (a signed copy of which is in the University of Chicago law library), he contended, “The use of legislative history to give meaning to a statute is a relatively new development in our common-law system.”

And in a metaphor tied to the maturation of certain creatures that somehow seems apt as we today celebrate his 74th year, Scalia continued, “Some creatures that seem pleasant and tractable in their infancy – tiger cubs, for example – are better abandoned when they reach their full natural development. Now that legislative history has reached its adulthood, perhaps it is time to reconsider whether we want to live with it.”